Bland & Mahoney & Ors
[2012] FamCA 822
•26 September 2012
FAMILY COURT OF AUSTRALIA
| BLAND & MAHONEY AND ORS | [2012] FamCA 822 |
| FAMILY LAW – CHILDREN – where the father has an acquired brain injury – where the mother has withheld the children on six occasions since 2008 – where allegations made against the father of sexual impropriety towards his children – where the Department of Communities, Child Safety and Disability Services and the Police have investigated the allegations – where the allegations of risk of sexual harm not substantiated – where the father was not charged with any offences stemming from the allegations – where the eldest child has resided with the second respondents for over a year – where the eldest child has expressed a desire to spend no time with her father – where the eldest child has also expressed a desire to remain living with the second respondents – where there are significant concerns regarding the capacity of each of the mother and father to provide for the needs of the children – where the siblings have been separated for over a year – whether it is in the best interests of the both of the children to live with the second respondents – where there are a number of relevant primary and additional considerations – where the separation of the siblings is a primary factor in this case – where it is in each child’s best interests to live together – where it is in the children’s best interests to live with the second respondents. |
| Family Law Act 1975 (Cth) |
| AIF v AMS (1999) 199 CLR 160 B and B (1993) FLC 92-357 B and B (1988) FLC 91-978 Briginshaw v Briginshaw (1938) 60 CLR 336 Cotton and Cotton (1983) FLC 91-330 Hardie & Capris [2010] FamCA 1046 In The Marriage of N & S (1996) FLC 92-655 M and M (1988) FLC 91-979 McCoy v Wessex (2007) 38 Fam LR 513 Napier v Hepburn (2006) FLC 93-303 Partington (aka Bade) v Cade (No 2) (2010) 42 Fam LR 401 Potter v Potter (2007) 93-326 Sigley v Evor (2011) 44 Fam LR 439 U v U (2002) 211 CLR 238 |
| APPLICANT: | Mr Bland |
| 1st RESPONDENT: | Ms Mahoney |
| 2ND RESPONDENTS: | Belinda Mahoney & Mr Price |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Duncan |
| FILE NUMBER: | BRC | 8207 | of | 2008 |
| DATE DELIVERED: | 26 September 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 10, 11, 12 & 27 April 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Farr |
| SOLICITOR FOR THE APPLICANT: | Burchill & Horsey Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Frizelle |
| SOLICITOR FOR THE 1ST RESPONDENT: | Doyle Keyworth & Harris Family Law |
| THE 2ND RESPONDENTS: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER | Mr Linklater-Steele |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER | Legal Aid Queensland |
Orders
IT IS ORDERED THAT
Parental Responsibility
It be declared that the presumption of equal shared parental responsibility is rebutted in the best interests of S Bland (born … 1997) and K Bland (born … 2002) (“the children”).
That the maternal aunt, Ms B Mahoney and her husband, Mr Price (“the maternal aunt and uncle”) shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the children, save that the maternal aunt and uncle shall, prior to making the sole ultimate decision about any such issue:
a) Use their best endeavours to advise the mother and father in writing of the decision intended to be made;
b) Seek the mother’s and father’s written response in relation thereto;
c) Consider, by reference to the best interests of the children, any such response prior to making any such decision; and,
d) Advise the mother and father in writing as soon as reasonably practicable of their ultimate decision.
The maternal aunt and uncle have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the children whilst the children are in their care.
The mother shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the children whilst the children are in her care.
The father shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the children whilst the children are in his care.
Live With
The children live with the maternal aunt and uncle.
Any changes to the living arrangements of either of the children shall be made only with the written consent of both the mother and father, or further Order of the Court.
Spend Time With
The children spend time with the mother as follows:
a)If the mother lives in Central Queensland town Z:
i)from 3:00pm Friday to 3:00pm Sunday each alternate weekend during the school term.
b)If the mother remains living in Brisbane:
i)In Central Queensland town Z, from 3:00pm Friday to 3:00pm Sunday one weekend per calendar month.
c)The first half of the Easter, June/July and September/October gazetted school holiday periods every even year and the second half in every odd year;
d)For two weeks every Christmas/New Year school holidays commencing:
i)on the first day of holidays in every even year; and,
ii)two weeks after the first day of holidays in every odd year.
e)On the children’s birthdays as follows:
i)In odd numbered years from after school on the day before their birthdays until commencement of school on their birthdays;
ii)In even numbered years from after school on their birthdays until the commencement of school on the day after their birthdays;
iii)If their birthdays fall on a weekend from 12:00 noon until 3:00pm on the birthday.
f)On the mother’s birthday as follows:
i)If it falls on a weekday: from 3:00pm until 6:00pm; and
ii)If it falls on a weekend: from 9:00am until 5:00pm.
g)On Mother’s Day from 9:00am until 5:00pm Sunday, provided that on Father’s Day the child K shall spend time with the father from 9:00am until 5:00pm on that day.
The child S shall spend no face-to-face time with the father save as she might request.
In the event that S expresses a wish to spend time with her father, the maternal aunt and uncle shall do all such things as are reasonably necessary so as to effect that time occurring in accordance with the child’s wishes.
Save as is otherwise agreed in writing between the maternal aunt and uncle and the father, K shall spend time with his father as follows, in each case upon the father giving not less than 14 days’ written notice to the maternal aunt and uncle of his intention to do so:
a)In Central Queensland town Z, from 3:00pm Friday to 3:00pm Sunday one weekend per calendar month; and
b)The second half of the Easter, June/July and September/October gazetted school holiday periods every even year and the first half in every odd year;
c)For two weeks every Christmas/New Year school holidays, commencing on the first day of holidays in every odd year, and commencing two weeks after that date in every even year.
d)In Central Queensland town Z, on K’s birthday as follows:
i)In even numbered years from after school on the day before his birthday until commencement of school on his birthday;
ii)In odd numbered years from after school on his birthday until the commencement of school on the day after his birthday;
iii)If his birthday falls on a weekend: from 3:00pm until 6:00pm on the birthday.
e)In Central Queensland town Z, on the father’s birthday as follows:
i)If it falls on a weekday: from 3:00pm until 6:00pm; and
ii)If it falls on a weekend: from 9:00am until 5:00pm.
f)In Z, on Father’s Day from 9:00am until 5:00pm Sunday.
During the time K is with his father, the father shall do all such things as may be reasonably necessary or required so as to ensure that:
a)The paternal grandfather is to have no contact with K; and
b)The paternal uncle, Mr W Bland, is not to spend unsupervised time with K.
Changeovers in relation to time between the children and the mother shall occur at the maternal aunt and uncle’s home.
Changeovers between the maternal aunt and uncle and the father for time with K shall occur:
a)For time in Central Queensland town Z: at the maternal aunt and uncle’s home; and, otherwise,
b)In the event the father lives in South East Queensland town M:
i)the maternal aunt and uncle shall meet the father at a location agreed in writing between the parties to be approximately half way between M and Z; and
ii)the father shall deliver K back into the care of the maternal aunt and uncle at the agreed location.
c)In the event that the father remains in Brisbane:
i)the maternal aunt and uncle shall meet the father at a location agreed in writing between the parties to be approximately half way between Brisbane and Z; and
ii)the father shall deliver K back into the care of the maternal aunt and uncle at the agreed location.
Communication
The mother be at liberty to communicate with the children by telephone at any reasonable time.
The father be at liberty to communicate with K by telephone at any reasonable time.
The mother and father each be at liberty to communicate with the children by mail and email at all such reasonable times as they might wish.
The maternal aunt and uncle shall retain each written communication and a hard copy of each email communication until the children respectively attain the age of 18, at which such time they shall provide same to each child.
To facilitate communication in accordance with the preceding paragraphs, the parties shall exchange, in writing, details of an active email account held by them within 14 days of the date of these Orders and shall advise each other party of any changes to that email address within seven (7) days of any such change.
The maternal aunt and uncle shall facilitate telephone communication between the children and the mother and father at any reasonable time requested by the children.
Provision of Information about the Child
Each party shall do all such things and sign all such documents as may be necessary or required to:
a)Authorise each other party to communicate with, and receive communication from, any doctor or health professional (of whatever type), whom the children consult, failing which this Order shall, of itself, constitute such authority;
b)Speak to, and receive oral or written communication from, any school or other educational institution, attended by the children, after payment of any necessary fee, failing which this Order shall, of itself, constitute such authority;
c)Keep the other party appraised of their residential address, telephone contact number, and other electronic communication address or addresses for the purpose of communication with the children (such as Skype and email), with any changes to same being notified to the other party in writing within 48 hours of same occurring;
d)Notify the other party as soon as reasonably practicable should either of the children suffer any medical emergency, serious illness, or other significant issue affecting the children’s health or welfare, whilst in their care.
Each parent shall be at liberty to attend any and all extracurricular activities undertaken by K and the maternal aunt and uncle shall do all things and sign all documents reasonably necessary to ensure that the attendance of each party is authorised.
The mother shall be at liberty to attend any and all extracurricular activities undertaken by S and the maternal aunt and uncle shall do all things and sign all documents reasonably necessary to ensure that the attendance of the mother is authorised.
In the event that any party fails or refuses to do any such thing or provide any such document or authority, this Order shall, of itself, be sufficient authority for each and all of the matters referred to in paragraphs 21, 22 and 23 of these Orders to occur.
Pursuant to s 65DA(2) and s 62B, Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bland & Mahoney and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC8207 of 2008
| Mr Bland |
Applicant
And
| Ms Mahoney |
1st Respondent
And
| Ms B Mahoney & Mr Price |
2nd Respondents
REASONS FOR JUDGMENT
The parents of the children S born in 1997 and K born in 2002 are each Indigenous. The children identify as Aboriginal children.
The children have each been subject to significant disruption in their lives. Currently S lives with her maternal aunt and her husband in the Central Queensland town Z. K spends alternating weeks with his father and mother in Brisbane. The father intends moving to the South East Queensland town M area. The mother resides in the Brisbane area purely to facilitate the week-about arrangement with respect to K. During the week when the father has K, the mother almost invariably travels to Z to spend time with her sister and S.
The mother proposes that the children live with her sister (i.e. the maternal aunt) until such time as she acquires “independent housing” in Z, at which time the mother proposes that the children live with her. The maternal aunt and uncle propose orders similar to those proffered by the mother.
The father proposes that both children live with him (presumably in or about the M area). The town M is situated approximately six hours from the town Z.
The Independent Children’s Lawyer proposes an order that the children live with the maternal aunt and uncle.
The living arrangements for S and, in particular, K form the core of the dispute before the Court. Whilst each of the parties put forward proposals for the time that the children should spend with the other party in the event that they are successful in establishing the living arrangements just described, neither party puts forward proposals in the event that the other party’s living arrangements are preferred by the Court.
Short Background
The parties separated in about 2006. At that time, then, the children were about nine and four respectively. The children lived with the maternal aunt immediately consequent upon separation. As will emerge, each of the parents has difficulties and issues relating to their parenting. In the mother’s case, they result from her abuse of alcohol. In the father’s case, they emanate from head injuries sustained as a result of a motor vehicle accident which saw him undergo significant rehabilitation until approximately June 2007. At that time the children came into his care. As will emerge, despite this, significant issues in relation to the father’s capacities remain.
In early 2008, the mother spent time with the children, having spent no time with them since she delivered them into her sister’s care post-separation. Allegations and counter-allegations attend the reasons why the mother had not spent time with the children up until that point. The mother has previously had serious problems with alcohol, although she says that the problem is now in recovery. In addition, the mother describes her condition at the time of separation as “having a breakdown”. As a result of one, or perhaps both, of those factors, the mother spent no time between separation and early 2008 with the children. When she commenced time with the children in early 2008, she refused to return them. The father subsequently took possession of the children from the mother, and they returned to live with him. The mother spent no time with the children between January 2008 and August 2008.
In August 2008, the mother spent time with the children and withheld them again. The father instituted proceedings at that time in the Federal Magistrates Court. On 8 October 2008, consent orders were made which provided that the parties would have equal shared parental responsibility, and that the children would live with the father and spend time with the mother on no more than two weekends per month. The mother commenced spending time with the children consequent upon those orders, but in November 2008 withheld them again. Again, the father travelled to town Y to collect the children.
On 13 November 2008, S allegedly told her paternal aunt, Ms H, that her “pop” (referring, apparently, to her paternal grandfather) “rubs himself on me”. S allegedly told her aunt that her grandfather had done this on seven previous occasions and that it occurred when her grandmother was in the house but in her bedroom. Ms H alleges that she too was indecently dealt with by her father as a child. So too does another of S’s paternal aunts.
On 29 November 2008, the mother withheld the children again.
After the mother withheld the children again in November 2008, the father obtained a Recovery Order in mid-December 2008. Orders were made by consent upon that application, returning the children to the father’s care and the children remained in the father’s care. Those orders provided that the mother’s time with the children was to be supervised.
On 1 April 2009, the paternal grandfather was charged with indecent treatment of children in respect of the allegations made by S. The paternal grandfather was also, subsequently, charged with indecent dealing with a child under 16 in the circumstances of aggravation, namely that the child was aged under 14 in respect of the allegations made by Ms H and her sister.
The Queensland Director of Public Prosecutions did not proceed with the indictment in respect of the charges relating to S’s allegations. During cross-examination by the Independent Children’s Lawyer, Ms H stated that the paternal grandfather was found not guilty following the trial in respect of her allegations and that, after “4 or 5 mistrials”, the charges relating to her sister’s allegations “did not make it to trial”.
In August 2009 there was a two day trial in the Federal Magistrate's Court resulting in consent orders. Those orders had the effect that the parents would share parental responsibility and the children would, upon the mother obtaining her own accommodation in Brisbane, spend equal time with their parents via a week-about arrangement.
The allegations by S and the subsequent charges faced by the paternal grandfather occurred prior to the consent orders made in August 2009 which saw the children live with their father.
In September 2010, the mother withheld the children again, this time alleging inappropriate sexual behaviour on the part of the father towards S.
The allegations made by the child as against the father are summarised in paragraph 4.4 of the second report by Mr J dated 13 July 2011 as follows:
4.4[S] said that she did not like the week about arrangement because “Dad always growled at us and did wrong things”. She said, “We just wanted to play … he would growl at us for playing”. She then added, “He used to grab my bum and stroke me down my body”. She spoke of seeing a policewoman named [Ms L] at [town Z]. I asked her if she had told her Mum about it and she said “No”. I then asked if she had told her auntie [Ms H] and she said, “Yeah”.
S also claimed that her father tried to kiss her on the lips. S participated in a section 93A interview conducted by the police in respect of the allegations against her father. No charges were proffered against him.
A further recovery order was made in December 2010.
On 27 December 2010, both children ran away from the care of their father. The father alleges that this event occurred at the instigation of the mother. At the end of January 2011 a further recovery order was made in favour of the father. At the same time as the recovery order was made, the proceedings were transferred from the Federal Magistrates Court to this Court. On 7 February 2011, about a week or so after the recovery order was made in late January 2011, S again ran away from the father’s care and, ultimately, commenced living with her maternal aunt in town Z. She has remained there ever since.
The father has not seen S since early February 2011 when she left his care. The report from Mr J refers to her apparently adamant views (expressed by a child who was then almost 15) that she wishes to have nothing to do with her father.
Since February 2011, the mother has been spending time with the child K in accordance with the week-about arrangement earlier ordered and travelling to town Z during the week that K spends with the father, so as to spend time with S. That situation pertains to the present.
Orders were made by consent by the Principal Registrar and subsequently by Kent J in December 2011 that S live with her maternal aunt and uncle and according sole-parental responsibility to the maternal aunt and uncle with respect to S. The orders did not provide for time between the father and S.
The Parties’ Proposals
Mother
The mother seeks an order the effect of which is that she, her sister and her brother-in-law, share parental responsibility for both of the children. The mother also seeks an order that the children live with their maternal aunt and uncle and spend each alternate week with her until such time as she acquires housing in town Z. Upon the mother acquiring housing in Z, she contends for an order that the children live with her.
On the mother’s case, the father presents an unacceptable risk of sexual harm to the children. This will be canvassed in greater detail below. Based on this contention, the mother seeks an order that time between K and his father be supervised. The mother submits that no order with respect to time with the father should be made in respect to S.
Father
The father seeks orders that he and the mother share parental responsibility and that K live with him but that S live with her maternal aunt and uncle and be at liberty to spend time with her father when and if she chooses.
In terms of time between the mother and K, the father proposes that if both he and the mother are living in Brisbane, then the existing arrangement continue such that K spends alternate weeks with each of his parents. However, in the event that either he or the mother is living “outside of Brisbane” the father proposes an order that the mother spend time with K one weekend per month during the school term and for half of all school holidays.
Independent Children’s Lawyer
The Independent Children’s Lawyer proposes an order that both children live with the maternal aunt and uncle and that the maternal aunt and uncle have sole parental responsibility for the children.
In terms of time with their parents, the Independent Children’s Lawyer proposes that the father spend time with the children on one weekend per month, with the father travelling to town Z to facilitate such time in the event that he is living in town M or, if the father remains living in Brisbane, with he and the maternal aunt and uncle meeting halfway between Z and Brisbane to facilitate time.
In terms of the mother, the Independent Children’s Lawyer proposes an order that, if the mother is living in town Z, she is to spend each alternate weekend with the children or, if she is living in Brisbane, she is to spend one weekend per month with the children in Z.
The Independent Children’s Lawyer proposes that the parents share school holidays but during the Christmas holidays, time with the children be distributed evenly between the mother, father and maternal aunt and uncle.
The Independent Children’s Lawyer also seeks an order that there be no contact between the children and the paternal grandfather and a further order that K is not to be left in the sole care of this paternal uncle, W.
Maternal Aunt & Uncle
The maternal aunt and uncle seek orders similar to those agitated for by the mother. Specifically, they seek an order that the children live with them, until the mother acquires housing in town Z and, until that time, they have sole parental responsibility for the children. If the mother relocates to Z, the maternal aunt and uncle propose orders that would see them share parental responsibility with the mother, with whom the children would live.
The maternal aunt and uncle did not propose a specific amount of time between the father and K, however, they did seek an order that “extended time” be supervised to assist him in the carrying out of day-to-day tasks. During oral submissions, the maternal aunt and uncle, who were self-represented, also stated that the father would be welcome to spend time with the children whenever he was in Z and that they would be willing to meet the father halfway between town Z and town M so as to facilitate time between him and the children.
Risks?
The risks of harm, in all senses of the word, is of course a predominant consideration of this Court in assessing which orders ought be made in the children’s best interests.
Here, a number of risks or potential risks are revealed by the evidence:
· The potential for the paternal grandfather to present a risk resulting from inappropriate sexual behaviour.
· Risks represented to S by reason of her psychological vulnerability. The evidence reveals that she is, and has for some time been, receiving counselling through the Child Youth and Mental Health Service and is prescribed anti-depressant and anti-anxiety medication.
· K has special needs (he is easily distracted and is, it seems, at some significant disadvantage in terms of his reading). The risk to his emotional or psychological harm pertains to whether existing provisions made for accommodating his special needs would be disturbed.
· The suggestion that the father has engaged in sexually improper behaviour towards both children.
· The past history of alcohol abuse by the mother and vulnerabilities in her personality including the potential for a resurgence of her alcohol problems.
The proper place of allegations of sexual abuse in parenting cases was, prior to the amendments to Part VII, authoritatively set out in M and M (1988) FLC 91-979, and is often described as the “unacceptable risk” test (e.g. B and B (1988) FLC 91-978 and M and M).
In McCoy v Wessex (2007) 38 Fam LR 513, Brown J refers to a number of decisions where the place of “unacceptable risk” is considered. In particular, her Honour refers to the decision of Fogarty J in the Full Court decision of In The Marriage of N & S (1996) FLC 92-655 (at 82,713-4).
Brown J also refers to the judgment of Warnick J in Napier v Hepburn (2006) FLC 93-303 (also subsequently cited with approval by the Full Court in Potter v Potter (2007) 93-326 and Partington (aka Bade) v Cade (No 2) (2010) 42 Fam LR 401). Warnick J says:
[114] I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial Judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can eliminate paths by which a family (or court making decisions for a family) might subsequently explore options for change.
In my view, the amendments to Part VII, including the introduction of mandatory Primary and Additional Considerations, do not alter any of the principles discussed in those authorities to which I have just referred. Best interests remain the paramount consideration (s 65AA) and s 60CC provides (together with the Objects and Principles) the path to that goal. Within the latter section, protection from harm as a primary role.
Subject to a consideration of the presumption of equal shared parental responsibility and, consequently, s 65DAA (reference to each of which will be made in a moment), the weighing of relevant Primary and Additional Considerations in the context of the Objects and Principles of the Family Law Act 1975 (Cth) (“the Act”) requires, in cases of this type, a careful balancing exercise similar to that referred to by the Full Court, prior to the 2006 amendments to the Act, in B and B (1993) FLC 92-357, in particular at
365-366.
Crucial to an assessment of whether or not the father poses an unacceptable risk of harm of sexual abuse is an understanding of the observations and conclusions of Dr N, a neuropsychologist who assessed the father. I accept her evidence and opinions. They are crucial to an assessment of best interests more broadly. It is, I think, important to quote from her report at some length.
Dr N’s assessment of the father
In her report dated 22 November 2011, Dr N states:
…The accident was reported to have occurred on … March 2004. On admission to [the] hospital, Glasgow Coma Score was 7/15. Post Traumatic Amnesia (PTA) assessment was ceased on 6.8.04 due to prolonged amnesia beyond 4 months. His injuries included diffuse axonal injury, left temporal contusion, pulmonary contusions, submandibular laceration, left occipital scalp and ear laceration and fracture of the left foot. This is consistent with a severe head injury.
…
He reported the following problems:
Cognitive:
·Memory: forget shopping, appointments. [The father] said that he had problems remembering the past and what people say to him. He said that he uses a white board for appointments, white board for [K] events and he has a calendar in his bedroom…
…
[The father] was cooperative with the assessment. He was neatly dressed. There was poverty of speech reflecting poor language abilities rather than any psychological factors. He had difficulty giving a clear concise history of important events.
[The father] had difficulty at times understand and following task instructions. There was some loss of concentration at times during the assessment. There was evidence of fatigue.
[The father] had a 30 minute lunch break and he sat in the park opposite the building. When he returned from lunch he said that he had got lost and gone in the wrong building and had to ask for directions.
There was lack of insight into the problems that he might be facing following his car accident. There was lack of insight into the reasons [why] [S] may not want to live with him.
…
5.1.1 Premorbid Cognitive Functioning
…On the Test of Premorbid Functioning, [the father’s] performance yielded an estimated Full Scale IQ score within the Borderline range.
5.1.2 Current Cognitive Functioning
…
On current assessment, [the father’s] Full Scale IQ score fell just within the Borderline range. This is consistent with this estimated premorbid level of functioning and indicates that there has been no loss of global intellect post-accident.
…
5.1 Verbal Abilities
…
[The father’s] abilities were consistent on all tasks indicating verbal abilities in the Extremely Low range.
…
5.4 Attention and Concentration
…
On sustained and divided attention task, [the father] demonstrated impairment in sustained attention.
Qualitatively, [the father’s] attention fluctuated during the assessment.
5.5 Memory Functioning
…
[Thefather’s] immediate recall of short stories (Logical Memory) fell in the Extremely Low range (1st percentile) Delayed recall fell in the Extremely Low range (below 1st percentile)…
His recognition memory of stories fell in the Extremely Low to Boderline range (3-9%), and was somewhat better than free recall indicating that his memory benefited from cues.
…
Overall, [the father’s] verbal memory functioning demonstrated problems with both encoding and retrieval, was poorer than his already poor verbal abilities and was unreliable. That is, [the father] is prone to making errors. This means that when there are a lot of sources of information stored in memory, it is easy to add in the wrong one that does not actually belong to that memory…
…
5.6 Executive Functioning
…
[The father’s] memory functioning indicated problems with retrieval and organisation of information in memory that is consistent with problems with executive functioning.
…
Overall, [the father’s] performance was consistent with impairment in executive functioning.
…
6 Summary and Recommendations
…
6.4 On assessment [the father’s] intellectual functioning fell in the Borderline range which is consistent with his estimated premorbid level of functioning based on his reading ability and work history.
…
6.6 Cognitive weaknesses were noted in the following areas:
…
·Verbal Memory: [The father] had a severe impairment in verbal memory functioning. He had difficulties encoding information as well as difficulties retrieving information from memory. His memory functioning was unreliable and he was prone to confusing information. His memory functioning was poorer than his already weak verbal abilities.
…
·Executive Functioning: moderate to severe impairment – verbal inhibition, initiation of problem solving, abstract reasoning/concrete thinking style, preservation, and mental flexibility.
6.8 [The father] demonstrated significant deficits in memory functioning that will impact on his everyday life. This is consistent with his reports about needing a white board to keep track of [K’s] activities and problems with remembering appointments etc.
6.9 In addition, he has an impairment in executive functioning. Deficits in executive function indicate his ability to use his cognitive capacity efficiently may often be erratic and unsuccessful. Executive functioning can be considered the control centre that enables a person to navigate successfully through daily life. It is a group of mental abilities concerned with planning and achieving goals. It does this in a number of ways.
6.10Executive functioning is central for the formulation of plans and then guiding behaviour according to these plans. Once a plan has been formulated, it is retained in memory. But this memory is about what the future should be like and this memory of the future guides behaviour. For example, a person plans to wash up, starts washing up, phone rings, answers phone and then returns to finish the washing up. For individuals with executive functioning deficits, often they “forget” to return to do the washing up, they don’t have a memory problem per se but the distraction of the phone is enough to distract from the plan. Often if there is some cue, such as wearing washing up gloves, then they may be cued to return to the task, washing up.
…
Resolving ambiguity is another area involving executive functioning. That is, in the most real life situations there are no intrinsically correct or incorrect choices. There more adaptive and less adaptive decisions but situations are usually intrinsically ambiguous. What is correct and incorrect depends on the interplay of the properties of the situation and the properties of the person (goals, motives, personal history etc).
Executive functioning is central to social functioning. Executive dysfunction will disable the person in some way by preventing or diminishing his or [her] ability to participate in social activities. That is, deficits of attention, diminished insight, poor social judgment, labile mood, irritability, problems with impulse control and a range of personality changes that when combined with specific cognitive problems and premorbid personality characteristics can lead to serious social handicap undermining a persons’ capacity for independent social behaviour.
6.11 The profile elicited in terms of executive functioning deficits is consistent with [the father’s] problems with irritability, lack of insight into his father’s behaviour towards his children and sister. It is consistent with the need for support from his mother, ABIOS and the Adult Guardian.
…
Plainly the father has suffered a significant brain injury leading to deficits across a range of cognitive functions, in particular insight and memory.
The mother does not assert that the father engaged in any sexually inappropriate behaviour towards either child prior to separation, at which time, I note, S and K were aged nine and four years respectively. It seems that the evidence upon which the mother relies to found her contention that the father poses an unacceptable risk of sexual harm to both of the children is as follows:
·On 31 August 2010, S sent a text message to another maternal aunt asking “[i]f Dad abuses me does that mean mum gets to keep me?” and when queried by her aunt, sent a further text stating that her father was “grabbing me on bum and tried to kiss me on the lips” and had “flashed his bum” at her;
·S subsequently stated in an interview with the Queensland Police Service (“QPS”) that on or about 18 December 2010, her father hugged her from behind and ran his hands down from her diaphragm to her “mons pubis” and then walked off laughing. S further stated that on or about 19 December 2010, her father “…leaned over to kiss [her] on the lips when she was sitting watching [the television]. She blocked the kiss, and [she] alleged [the father] walked away laughing”;
·The mother informed Police in December 2010 that K was still sleeping in the same bed as his father, that the children had seen the father’s penis and that the father had chased the children around the house whilst he was naked;
·The mother further contends that K told her sister that his father had done “naughty, rude things” to him in the bed and in the shower.
Each of the above allegations were investigated by both the QPS and the Department of Communities, Child Safety and Disability Services (“the Department”). Both children participated in several “93A interviews” (interviews with children).
In terms of K, the documents produced pursuant to subpoena by the QPS reveal that on 7 September 2010, K participated in a 93A interview during which he:
…disclosed that his dad pushes him and throws stuff and throws the ball at him and it makes him feel sad and it hurts his neck and head when he does this. [K] corroborated [S’s] version by disclosing that his father exposed his bum, however, when asked direct questioning about seeing his dad’s private parts he denied any actions by his dad.
Both children participated in further 93A interviews on 18 December 2010 during which “…the children did not make any disclosures to substantiate any offences occurring.” A further 93A interview was conducted with K in early January 2011. The QPS records state that “…[K] was unable to particularise any offence but did state that his father, on occasions, would run around naked in the house and try and catch him and his sister. He further stated that on occasion his father smacks him for being naughty and uses an open hand across his bottom and sometimes a belt.”
In terms of the allegations made by S, records produced pursuant to subpoena by the Department state:
When [S] was disclosing the information [regarding her father placing his hands on her diaphragm area and moving them down to her mons pubis and her father attempting to kiss her on the lips], she was observed to be ‘clearly distressed’ and has been taking antidepressant medication…It was assessed that the behaviours the child explains (of her father) are ‘a little bit odd’ but not outside the limits of parental affection however touching her on her pubic area is not appropriate but alone and in the circumstances does not constitute an offence or raise a criminal interest regarding impropriety…[S] has not told her father that his actions make her feel uncomfortable or for him to stop… [P]olice have assessed that the behaviours disclosed by [S] do not substantiate an offence. Whether these behaviours or reactions are to a real or imagined situation, they are clearly distressing for the child. (Although the tears may have been from the child realising police were not going to intervene in the living arrangement). [S’s] choice of language is above her age however the disclosures are consistently a non-event (So are perhaps based on real events – with a super-sensitive perception)…
No charges were laid against the father in respect of the allegations made by either child and the QPS referred the matter to the Department.
Ultimately, the Department determined that the father did not pose an unacceptable risk of physical or sexual harm to either S or K but that both parents posed an unacceptable risk of emotional harm. Extensive reasons are given for those respective conclusions (Exhibit ICL 6). But, crucially, the conflict that leads to these proceedings can be seen to be a vitally important contextual matter:
…
There are concerns that the primary motivation for the significant level of contact with the Department is as a result of the ongoing FLC proceedings...[T]here has been significant contacts with the Department over the years from both sides of the family, or through extension, professionals who have a personal, or professional relationship with the family. It is also noted that there has been over 12 contacts with Intake Services and/or Child Safety Service Centres since the commencement of this investigation in the middle of December 2010…[P]rior to 2006, six reports were made to the Department, which leaves 16 distinct events (reported concerns) made between August 2008 to this current [investigation].
There is concern that should the children be ordered to remain in shared care between their mother and father, that there will be a significant level of contact with Departmental representatives as a result of this decision…
…[T]his investigation has not identified harm for either child, whilst they reside with either parent.
…
There is concern that neither parent has both the capacity and willingness to ensure the care needs of their children are met into the future…
The outcome of this assessment identified that [S] in particular was displaying behaviour which is indicative of emotional harm, she is being supported by [Child and Youth Mental Health Service] in resolving the emotional turmoil that is present for her. With workers identifying that [S] has been having flash backs, increased levels of anxiety, nightmares and other signs of emotional stress. Whilst it is unclear if this relates to current parental behaviour, it is apparent that emotional harm has occurred.
Whilst no actual harm has been identified for [K], there is an identified level of risk of harm to the children due to the negative family relationships particularly between the parents [and] the resultant conflict as a result of poor family relationships (inclusive of extended family)…
…
Plainly, the QPS and the Department have each had significant involvement with this family; each have investigated the various allegations made by the mother and the children against the father. The QPS has determined that the father’s conduct does not amount to offences; and, the Department has determined that the father does not pose an unacceptable risk of sexual harm to the children.
Significantly, the Department ultimately determined that both parents posed an unacceptable risk of emotional harm to the children, with the harm posed by the mother being identified as the “most serious” for both children.
I am satisfied, to the requisite standard (see, Briginshaw v Briginshaw (1938) 60 CLR 336) that the father does not pose an unacceptable risk of sexual harm to either of the children. I consider that the assessment of the QPS and the Department that the father’s behaviour whilst “a bit odd” is not outside the bounds of parental affection is consistent with the observations of Dr N set out above. I consider those reports of the father’s behaviour have been exaggerated. In particular, I consider it highly likely that, to the extent that the father did in fact engage in behaviour meeting the broad description of that alleged, any such behaviour is more likely attributable to the children’s perceptions of the deficits in the father’s executive functioning, leading to “…deficits of attention, diminished insight, poor social judgment, labile mood, irritability, problems with impulse control and a range of personality changes…”, rather than any sexual impropriety on the father’s part towards his children.
Further, I have no reservations about the parental capacities of the maternal aunt and uncle – whether in terms of protecting the children or more generally. Whilst S remains living with them, I consider that neither parent poses an unacceptable risk of emotional harm to her. So much is plain from the fact that since S has been living with her maternal aunt and uncle, there have been no further notifications to the Department regarding S and her psychological wellbeing has, on all accounts, steadily improved.
I am, however, satisfied that whilst K continues to spend equal time with each of his parents, he will be at an unacceptable risk of emotional harm from his mother, stemming from the “…negative family relationships particularly between the parents [and] the resultant conflict as a result of poor family relationships.” The mother’s conduct in these proceedings, including her ostensibly implacable belief that the father has sexually abused the children, notwithstanding the evidence from both the QPS and the Department and that of her sister and brother-in-law who each stated, in my view, frankly and honestly, that it was possible that both children had misconstrued their father’s actions as a result of being uninformed about their father’s deficits, is entirely consistent with the observation of the Department set out above that K is likely to suffer “significant” emotional harm as a result of the “…pressure he feels to speak negatively about his father, to ensure that he is able to remain with his mother, sister and other family members…”
In terms of the risk posed by the paternal grandfather, it is not disputed by any of the parties that the children should not be left unattended with him. Whilst the father does not believe his father has sexually abused S, he does not oppose an order that the children should not have contact with their paternal grandfather.
The further risks identified above, in particular the risks associated with changing K’s current circumstances and S’s mental health issues will be dealt with below in the context of the relevant Part VII considerations.
Issues and Considerations
A number of issues directly relevant to the best interests of these two children can be seen to find reflection in the primary and additional considerations which the Court is compelled to consider by reference to s 60CC of the Act within the context of the Objects and Principles outlined in Part VII. The further amendments effected to Part VII of the Act by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), do not apply to the present proceedings by virtue of them having been commenced prior to 7 June 2012.
Section 60CC(2)(a) – Meaningful relationship
The Court is compelled to consider the benefit of each of the children having a meaningful relationship with both of their parents (s 60CC(2)(a)). More than 20 years prior to the inclusion of that particular primary consideration within the legislation, Nygh J said in Cotton and Cotton (1983) FLC 91-330 at 78,252 – 78,253:
One of these generally accepted perceptions, as I see it, is that it is desirable for a child to maintain a meaningful relation with each of his or her parents. That is obviously desirable when the parents are living together in a united household, but it becomes even more desirable when the parents are separated …
However, that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. Nor is it necessary, as it must be obvious from the way I have expressed myself, that access should only be denied if it is established that a parent is likely to be a positive harm to the child - it is the emotional relationship which counts and not the inherent harmfulness of the parent as such: thus I can well imagine that in certain circumstances a woman who leads a totally immoral life such as a prostitute may have something to offer her children. On the other hand, it may be that a person who leads a life which to the general observer is one of a pillar of rectitude has nothing to offer to his children. In this case, as I have said, it is not a question of generalisation. One must come down to the real situation of the parties.
It is patently clear from the evidence of Mr J, which I accept in this regard, that K’s relationship with each of his parents is not only beneficial to him, but is also significant and valuable (see, ss 60CC(2)(a) and (3)(b) and Sigley v Evor (2011) 44 Fam LR 439). Sadly, at present, S has no relationship with her father. They have not spoken in over a year and S is resolute in her desire to have no contact with her father. In contrast, Mr J’s evidence reveals that S enjoys a mutually beneficial relationship with her mother. To his credit, the father does not contend otherwise.
Section 60CC(2)(b) – Protection from harm
The mother alleges that the father was physically violent towards both herself and S prior to separation. The documents produced pursuant to subpoena by the QPS do not reveal any issues regarding violence between the mother and the father. Contrastingly, the QPS documents reveal attendances upon the mother and her partner in 2008 and 2009 for, respectively, a verbal dispute and a physical altercation.
In respect of the physical altercation, on 7 February 2009 the Police attended at a residence following an alleged assault involving the mother and her then-partner. The mother’s partner informed police that the mother had hit him on the head with a bar stool; the Police observed a “large amount of bleeding coming from a wound across” the partner’s face. The report notes that children were present but in another room; it is not apparent whether those children were the children the subject of these proceedings or other children. The records also note that “[b]oth parties have shown a propensity to be violent…” As a result of this incident, a Protection Order was made on 17 February 2009 naming the mother as a respondent. That order ceased on 15 February 2011. Those reports also noted that in August 2008, the Police were called as a result of a verbal dispute between the mother and her partner, both of whom were “intoxicated”. During this period the children were spending unsupervised overnight time with their mother.
The mother’s position is that her behaviour as reported in the QPS documents stemmed from problems she had with alcohol. She says that she is no longer “self-medicating” with alcohol and, as such, does not pose a risk of physical or psychological harm to the children from their being exposed to abuse, neglect or family violence.
At present, there is no risk of harm to S from the father because she is not spending any time with him. In any event, for the reasons set out above, I am satisfied that the father does not pose an unacceptable risk of harm to S or K.
The father is not in a relationship and there is nothing to suggest that when the children have been in the father’s care, post-separation, they have been exposed to family violence involving the father.
There is, however, a need to protect both children from physical and psychological harm stemming from sexual abuse by their paternal grandfather. Regardless of whether or not the paternal grandfather did in fact engage in the conduct alleged by S, there can be no doubt that S has suffered psychological harm as a result of, at the very least, her perception of her grandfather’s actions. I consider that there is a risk of both children suffering psychological harm as a result of being “subject to, or exposed to, abuse…” by their paternal grandfather and, as such, I propose to make an order that the children have no contact with the paternal grandfather.
Whilst an order that any contact between K and his paternal grandfather occur whilst a person other than the father is present may be sufficient to protect K from harm, there have been numerous allegations by the mother that K has been in contact with his paternal grandfather both on his own and also without another adult (other than his father) being present.
Further, S has previously expressed a fear of her paternal uncle, W, who has previously lived with the father and who has an extensive criminal history, including a number of drug possession and production offences and domestic violence offences. The Independent Children’s Lawyer proposes an order that W not have sole care of K at any time. According to the written submissions filed by the Independent Children’s Lawyer “[t]he Court would be satisfied that there would be no unacceptable risk if it were ordered that [the paternal uncle], is able to be in the presence of the child [K] with others, provided he never has sole care of the child.”
I consider there to be merit in that order, particularly given that the father is likely to move to South East Queensland and may well have contact with his brother during the times that K is with him. Obviously enough, the order will be framed as an injunction binding the father; the paternal uncle is not a party to these proceedings.
Section 60CC(3)(a) and (b) – Views of the children and nature of their relationships
S is of an age and level of maturity where her views must be carefully considered by the Court (s 60CC(3)(a)). The father asserts that her views have been strongly influenced by her mother or her mother’s family. I suspect that there has been at least some influence. Much, though, I suspect, devolves from a lack of understanding of, or fear of, the father’s impaired functioning.
Nevertheless, S’s views need respect. They are recorded by Mr J, the Family Consultant, over what is now a significant period of time and across a number of reports. It is significant in that respect to see what S has said over a period of three years in reports of Mr J dated 16 March 2009 and 10 July 2011, examples of which are:
·She and her father “…go to the shopping centre and sometimes go to the park but do ‘no other fun stuff’” (report dated 16 March 2009);
·“She said that when she stayed with her mother, she and her brother were crying because they did not want to go back to live with their father. She said that she would feel ‘pretty sad’ if she could not live with her mother’” (report dated 16 March 2009);
·“[S] said that she did not like the week about arrangement because ‘Dad always growled at us and did wrong things’. She said ‘We just wanted to play…he would growl at us for playing.’ She then added, ‘He used to grab my bum and stroke me down my body’. She spoke of seeing a policewoman…at [town Z]…” (report dated 10 July 2011 2009);
·“[S] said that she sees a counsellor…and that she has seen her for the past eight months. She said that she was put on Zyprexa by Dr [R] and was able to tell me that her daily dosage had increased from 2.5mg to 5mg because she could not sleep at night and was having nightmares. I asked her about the nightmares and she said that they were about ‘Dad hurting Mum or us going back to Dad’s house and no-one helping us’” (report dated 10 July 2011);
·“…[S] said that she wants to live with her Mum and [K] in [town Z]. On further questioning, she said that she does not want to see her Dad. I asked her why not, and she said, ‘Dad’s stroked down my body and my rude parts and I feel uncomfortable’” (report dated 10 July 2011);
·“[S] said that she does not talk to her Dad at all because she does not really want to; ‘Or even look at him’” (report dated 5 April 2012);
·“[S] said clearly that she does not want any changes to her living arrangements but she wants her mother and [K] to live in [Z] as soon as possible…” (report dated 5 April 2012).
The child K is currently 10 years of age and greater circumspection must attend weight being attached to his views insofar as those views ought be taken as indicative of orders which accord with them (s 60CC(3)(a)). In that respect, it might be noted that K, by reference to the background earlier described, has had a somewhat chequered and difficult last few years and it would be surprising if that has not had an impact upon his view of each of his parents and what he might desire. I take account of that factor in attributing weight to his views as I do to the fact that he is yet only 10 years of age.
However, the views of all the children deserve respect and children ought be listened to in the context of proceedings about them. It is significant to note not only what K has said, but the emotions which attended those words, seen acutely in Mr J’s most recent report (dated 5 April 2012):
6.5I asked [K] if he thought that he would be living with his Dad at the same house in the future. He shook his head and said that his Dad keeps on swearing. At this point, he looked down and as has been the case on every occasion that I have seen him, tears started rolling down his cheeks.
Mr J goes on to record:
6.8When asked to comment on any things that he really enjoys about living with his father, [K] said, “Just playing the PlayStation”. He acknowledged that sometimes his father plays cricket with him in the back yard.
6.9When questioned about any things that he does not like about living with his Dad, [K] referred to:
·“His swearing”.
·“He puts his arm over me when I’m asleep (demonstrating his father’s arm over his head). [K] said that he does not sleep in his own bed because he is really scared but stated that he would be sleeping in his own bed soon.
To the extent that K might be seen to be expressing a view indicative of preference for proposals put forward by either the mother or the father, Mr J records:
6.11I asked [K] if there is a house that he likes living in the best and he said “[the maternal aunt’s]” because he has fun there.
6.12[K] said that he talks to [S] on the phone sometimes. He added that he misses her and in response to a specific question, he acknowledged that he sometimes misses [S] so much that he will cry “a little bit”.
6.13Responding to the ‘three wishes’ question in relation to his family situation, he offered the following:
1.“To live with [the maternal aunt] and my Mum and cousins”.
2.“To get an Xbox and Mum gets a house”.
3.“Staying in [town Z]”.
In general terms, Mr J paints a picture of a troubled young boy in each of his reports. The observation made in paragraphs 6.5 of Mr J’s most recent report, can be seen reflected in an earlier report given about 10 months previously. Mr J there said:
4.24He sat beside me and I noticed tears rolling down his face.
4.25Once again, [K] responded only to questions and offered no information spontaneously. I asked how his Dad was and he said, “Good”.
4.26He told me that he like seeing his mother and his sister and his aunt. He said that he liked seeing his Mum most.
4.27I reminded him of what he had told me last time, about what he wanted and asked him if it was still the same. He responded, “No”. He said that he wants to live with his Mum and [S] and his [maternal aunt]. When I asked why, he said, “Cos Dad keeps being mean to me”. I asked how his Dad is mean and he said, “By pulling me on the shoulder”.
4.28[K] continued to be tearful. I asked him if he knew the difference between “good touches” and “bad touches”. He was able to tell me and said that “a bad touch is in a rude part”. I then asked him if anyone had touched him in a bad way and he said, “No”. I continued conversing with [K] and asked him the same question in a different way a number of times. On each occasion, he gave a negative response.
I also consider it important for the children to spend time together with their maternal aunt, uncle and cousins during the Christmas/New Year holidays. As such, the orders I will make will ensure that the children spend two weeks during that holiday period with their maternal aunt, uncle and cousins as well as two weeks with each of the parents (in the case of K) and the mother (in the case of S).
Whilst I am cognizant of the practical difficulties the father faces in spending time with K, I consider that an order that he spend time with K at least one weekend per month during the school terms and half of the mid-semester school holidays and two weeks in the Christmas/New Year school holidays, provided the father has a support person with him at all times, to be the best means of maintaining a relationship between K and his father.
I do not propose to make any order regarding time between S and her father, other than that S shall be at liberty to spend time with her father at all such times as she may reasonably choose.
In terms of time between the mother and the children, I consider an order that, in the event that the mother moves to town Z, she spend time with the children each alternate weekend and half of the mid-semester school holidays and two weeks in the Christmas/New Year school holidays to be in the children’s best interests. In the event that the mother continues to reside in Brisbane, I consider an order that the children spend time with their mother on one weekend per month during school terms and for half of the mid-semester school holidays and two weeks in the Christmas/New Year school holidays to be in the children’s best interests.
I am acutely conscious of the evidence to the effect that K is “the father’s world”. I anticipate these orders will fill him with significant grief. I have considerable sympathy for his situation, which I find profoundly sad. If those criteria were those that led to orders, the orders might be different. But, they are not. The best interests of these children is the ultimate criterion for the orders and however much sympathy I have for the father’s position, I consider that the relevant Considerations point clearly to the orders foreshadowed.
I order accordingly.
Delay
I recognise that it will be cold comfort to the parties should I seek to explain (but not excuse) the delay in the delivery of these orders and Reasons by reference to the need to sit in other registries in Australia. Nevertheless I extend my apologies for the delay which I very much regret.
I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 26 September 2012.
Associate:
Date: 26 September 2012
Key Legal Topics
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Family Law
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Jurisdiction
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Procedural Fairness
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